Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00004788-001

23rd May 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00004788-002

23rd May 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00004788-003

23rd May 2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004788-004

23rd May 2016

The complainant is a general operative and worked for the respondent until the 11^th March 2016. His commencement date is in dispute, as is whether he was dismissed from this employment. Also in dispute is whether the complainant was paid for annual leave. The complainant was paid €11 per hour and worked a 45-hour week.

The complainant outlined that his employment commenced on the 10^th March 2015 and this came to an end in or around the 11^th March 2016. He worked for the respondent, who was a subcontractor on named building sites. He started off doing small jobs and was then assigned to two named sites. His hours of work were 7am to 4pm and he worked Monday to Friday, and some Saturdays. He was paid €10 per hour for the first three months of his employment and €11 per hour for the remaining time of his employment. He stated that he was not provided with a contract of employment. He was not paid annual leave or for public holidays. In the course of the hearing, the complainant withdrew the public holiday element of his claim.

The complainant outlined that he was not regularly provided pay slips. The respondent only issued pay slips when he asked for them. The first pay slip he was provided was on the 30^th April 2015, but he was already in employment at that stage.

In respect of the end of his employment, the complainant said that he was working on a named site when the respondent told him to collect his tools and to go home. This occurred on a Thursday and it could have been the 10^th or 11^th March 2016. He was promised work on another site. He later tried to contact the respondent, but could never reach it. The respondent had telephoned him on a later occasion, after the April 2016 email was sent on his behalf.

The complainant said that he was unable to find work for several months and eventually a contact found him work. He had found it difficult to secure alternative work because of his lack of proficiency in English.

The complainant outlined that he was owed paid annual leave by the respondent, as well as notice pay of one week. He had earned €26,760 with the respondent and claimed annual leave amounting to 8%. He said that he received pay slips on the 31^st August 2015 and the 30^th April 2015 in the amounts of €1,465.85 and €1,413.33 respectively. He said that he received less money than stated in the pay slips but did not complain as he did not know about the laws.

In cross-examination, the complainant answered that he was paid by way of both electronic transfer and cash in hand. It was put to the complainant that he had been issued with a letter on the 25^th April 2015 to confirm the start of his employment with this employer; the complainant replied that he had never seen this letter before. It was put to the complainant that the respondent had answered April 2016 email; he accepted this. It was put to the complainant that the respondent had already paid him the holiday pay due; he replied that he had only been paid for work done. The complainant accepted that he did not work on the Christmas and New Year public holidays. The complainant was shown a pay slip dated the 31^st December 2015, to which he said that he never received the amount stated as paid in the pay slip. He said that he did not receive this pay slip and only ever received two pay slips from the respondent, after he had requested them. It was put to the complainant that he was paid €1,430.70 on the 31^st December 2015; he said that he would have to look back at these statements, but never received a payment of this amount. He acknowledged taking two weeks holidays in September 2015. He said that he received a payment while away but this was for work carried out. He could not recall the actual amount. The complainant denied receiving notice pay and was only paid for work he had done.

The representative of the respondent company referred to the pay slips and P45 submitted to the adjudication. The complainant had been paid for three weeks in March 2016 and so was paid two weeks extra. The representative stated that the complainant had commenced employment with a named person on the 25^th April 2015. The complainant was issued with a P45 at the end of July 2015 and his employment transferred to the respondent company on the 1^st August 2015.

The representative outlined that the complainant’s last day of employment was the 11^th March 2016. The respondent had found alternative work for the complainant at a named site, but the complainant refused to work on this site. The complainant never attended work again. He said that the complainant had secured alternative employment on the 23^rd March 2016 and at this stage, asked for his P45. It was submitted that the complainant had resigned his employment with the respondent. The complainant had been facilitated with lifts to and from work in respect of the contract that had come to an end, but the lifts would not be available to the new site.

In cross-examination, it was put to the representative that the onus was on the company to provide details of the hours worked, for example a sign-in book; the representative replied that signing in was done by the principal contractor. The representative was asked whether a contract of employment had been given to the complainant and he replied that it had been a verbal agreement. He was asked for the first P45 given to the complainant and the representative said that he did not have it with him.

The complainant makes four complaints. At the hearing, he withdrew the claim in relation to payment for public holidays. He claims for unpaid annual leave under both the Payment of Wages Act and the Organisation of Working Time Act. In the absence of any contract or statement of his terms of employment, this claim is dealt with under the Organisation of Working Time Act, as this provides the statutory right to paid annual leave.

CA-00004788-001

In respect of the claim made pursuant to the Payment of Wages Act and having considered the evidence, I find that the complainant was not paid notice pay. He stated that he did not receive notice of the end of his employment. I accept his evidence that the respondent ceased providing him with employment and there was insufficient evidence presented to conclude that he had resigned from his employment. The complainant is entitled to redress equivalent to one week’s pay, i.e. €495. As noted above, the claim for holiday pay is considered under the complaint made pursuant to the Organisation of Working Time Act.

CA-00004788-002

The complainant states that he did not receive paid annual leave, for example in a period in September 2015 when he was away. It was submitted on behalf of the respondent that the complainant was paid for this period. In the absence of supplementary evidence, I find with the complainant and that he was not paid for annual leave. Given that his employment lasted one year, he is entitled to redress equivalent to four weeks’ pay. This is €1,980.

CA-00004788-003

It was accepted that the complainant was not provided with a statement of the terms of his employment as required by section 3 of the Terms of Employment (Information) Act. Given the importance of the information required in such a statement, the complainant is entitled to redress equivalent to four weeks remuneration. This is €1,980.

CA-00004788-004

In respect of the complaint made pursuant to the Unfair Dismissals Act, I find that the complainant was dismissed on the 11^th March 2016 when one contract came to an end and the complainant was not assigned to another site. I do not accept that he resigned or refused to work on a different named site. I reach this finding because of the direct evidence from the complainant on this point, while there was no direct evidence as to what happened from the respondent side.

The respondent submits that the complainant’s employment transferred from one employer, a private individual, to another, a limited company on the 1^st August 2015. It refers to a P45, which the complainant denies seeing. Even if the respondent is correct, the complainant’s service transferred with his transfer to the new employer.

In respect of the start date of his employment, the complainant’s evidence was sketchy and vague. He was not clear on the date his employment commenced, but said that it predated the 26^th April 2015. While I accept that the complainant may have started by doing small jobs for the respondent or its predecessor, the complainant has not presented sufficient evidence to make a finding that his employment commenced on the 10^th March 2015, or on a date within a year of his dismissal. I acknowledge that the start date would have been stated, had the employer complied with its obligation under section 3(1)(e) of the Terms of Employment (Information) Act in providing the complainant with a statement of the terms of his employment. Nevertheless, I find that the complainant has not established that he has one year’s continuous service in order to bring a complaint of unfair dismissal. His complaint does not fall within one of the exceptions provided in section 2 of the Unfair Dismissals Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00004788-001

I find that the complaint made pursuant to the Payment of Wages Act regarding notice pay is well-founded and the respondent shall pay to the complainant redress of €495.

CA-00004788-002

I find that the complaint made pursuant to the Organisation of Working Time Act regarding annual leave is well-founded and the respondent shall pay to the complainant redress of €1,980.

CA-00004788-003

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,980.

CA-00004788-004

Pursuant to section 2(1)(a) of the Unfair Dismissals Act, I do not have jurisdiction to hear the complaint made under the Unfair Dismissals Act as the complainant did not have one year’s continuous service with the respondent and the circumstances around his dismissal do not fall within one of the exceptions provided in section 2.

Section 2(1)(a) of the Unfair Dismissals Act